Parties to a special education hearing have numerous rights as to how that hearing is to be conducted. These are laid out in great detail in the regulations, but this settlement not only reinforces those details but explains them further based on caselaw and fairness to the parties. This is the largest portion of the settlement agreement because so many of these rights are misunderstood or not used properly.
Relief #23 – Paragraph 26
“ALJs shall comply with N.J.A.C. § 1:6A-10.1(c) (“Upon application of a party, the judge shall exclude any evidence at hearing that has not been disclosed to that party at least five (5) business days before the hearing, unless the judge determines that the evidence could not reasonably have been disclosed within that time.”).”
What does this mean?
This is application of the ‘Five-Day Exchange Rule’. If a party fails to turn over the documents and list of witnesses they intend to introduce at the hearing, the ALJ shall EXCLUDE all such evidence. If it is the school district that violates this Rule, then it should automatically lose the case because in New Jersey schools have the “burden of proof”, meaning that they have to show how what they’ve done provides a FAPE for the child with a disability. If they can’t prove that because they have no evidence, they lose. The important part of this Rule is the word “shall” – this is not discretionary. “Shall” means it is mandatory on the ALJs.
Relief #24 – Paragraph 27
“ALJs shall comply with 20 U.S.C. § 1415(h)(2) (“Any party to a hearing … shall be accorded … the right to present evidence and confront, crossexamine, and compel the attendance of witnesses.”).”
What does this mean?
Plaintiffs in the J.A. Case as well as many other parents in New Jersey experienced situations where the ALJ limited or blocked the introduction of evidence or testimony based on very technical legal rules, which generally don’t apply in special education cases. IDEA and its regulations make it clear that ALJs must allow parties to present evidence and testimony, compel the attendance of witnesses (much like a subpoena in a trial), and cross-examine the other side’s witnesses and documents. This follows the rule of administrative law that “Parties in contested cases shall not be bound by statutory or common law rules of evidence or any formally adopted in the New Jersey Rules of Evidence except as specifically provided in these rules. All relevant evidence is admissible except as otherwise provided herein.” N.J.A.C. 1:1-15.1(c).
Relief #25 – Paragraph 28
“ALJs shall comply with 34 CFR § 300.502(c) (“If the parent obtains an independent educational evaluation at public expense or shares with the public agency an evaluation obtained at private expense, the results of the evaluation . . . [m]ust be considered by the public agency . . . and [m]ay be presented by any party as evidence at a hearing on a due process complaint . . . .”).”
What does this mean?
This is a very simple regulation, but often incorrectly applied. If parents obtain an IEE of their child with a disability either funded by the school or paid for by the parents and provided to the school, the IEE report must be considered by both the school district in making eligibility or IEP decisions and may be submitted as evidence in a due process hearing. An ALJ must take this into consideration just like any other evidence.
Relief #26 – Paragraph 29
“ALJs shall comply with N.J.A.C. § 1:6A-14.1 (“Procedures for hearing”).”
What does this mean?
The referenced regulation provides other hearing rights for the parties. Specifically, N.J.A.C. 1:6A-14.1 provides:
(a) To the greatest extent possible, the hearing shall be conducted at a time and place convenient to the parent(s) or guardian.
(b) At the hearing, parents shall have the right to open the hearing to the public, and to have the child who is the subject of the hearing present.
(c) A verbatim record shall be made of the hearing.
(d) The judge’s decision shall be based on the preponderance of the credible evidence, and the proposed action of the board of education or public agency shall not be accorded any presumption of correctness.
Subsection (a) is not properly done, in our opinion. In New Jersey, there are only three (3) locations for due process hearings: Newark, Trenton, and Atlantic City. Those places may not be convenient to the parents as they may live a long distance from the hearing location and have to take one or more days off from work to attend. However, the settlement does not resolve this. But, a parent can demand that the time of the hearing be convenient to them.
Subsection (b) is rarely used and most likely misunderstood. A due process hearing is paid for by public funds and therefore the parent has the right to open the hearing up to the public, if they wish. A parent may not want to because of their privacy or concerns about their child. But they may also have their child present at the hearing. Just like an IEP meeting, attendance of the child at the hearing is at the discretion of the parent.
Subsection (c) is regularly followed. The hearing must be recorded and a parent is entitled to a transcript of that hearing. If you (or your attorney) are not doing so, you should start requesting a free copy from NJDOE of the hearing.
Finally, subsection (d) sets the legal standard for how ALJs decide the case based on the evidence before him/her. “Preponderance of credible evidence” means that the evidence makes one finding more likely than not. The key part of this subsection is that school districts are not to be given the benefit of the doubt. In other words, changes in placement, IEPs, eligibility decisions, etc. are not automatically correct simply because a school district suggests them. Remember, school districts still have the burden of proof.
Relief #27 – Paragraph 30
“ALJs shall comply with N.J.A.C. § 1:1-15.1, including N.J.A.C. § 1:1-15.1(c) (“All relevant evidence is admissible except as otherwise provided herein.”).”
What does this mean?
This is a restatement of the principle set forth in Relief #24, Paragraph 27 above, but citing to the New Jersey regulation. An ALJ must admit all relevant evidence without formal rules. ALJs cannot exclude relevant evidence submitted by any party.
Relief #28 – Paragraph 31
“ALJs shall issue and enforce their prehearing orders.”
What does this mean?
We have already discussed Prehearing Orders in Part Four. This repeats that ALJs shall not only issue such Orders, but also enforce them.